P. v. Humphries
Filed 6/21/12 P. v. Humphries CA1/5
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
STEVEN G.
HUMPHRIES,
Defendant and Appellant.
A134704
(Lake
County
Super. Ct.
No. CR928253)
On
December 13, 2011,
appellant Steven G. Humphries was convicted, following his plea of no contest,
of two felonies: attempting by threats
or violence to deter an executive officer from performing a
and possession of methamphetamine for sale (Health & Saf. Code,
§ 11378). He admitted that he had
suffered two prior terms of imprisonment arising from felony convictions
(§ 667.5, subd. (b)), making him presumptively ineligible for
probation under section 1203, subdivision (e)(4). As part of the
dismiss a charge of transportation, selling or furnishing methamphetamine
(Health & Saf. Code, § 11379, subd. (a)), and an allegation that
Humphries had suffered a prior “strike†conviction for burglary (§ 667,
subds. (b)–(i)). Humphries was
advised that the maximum possible sentence he could receive was five years,
eight months. The court denied
probation, finding that this was not an unusual case that would overcome
Humphries’s presumptive ineligibility.
The court found that, even if Humphries had been eligible for probation,
he would not be a suitable candidate for probation given his numerous prior
convictions and his poor prior performance on probation and parole. The court sentenced Humphries to prison for
the maximum term of five years, eight months:
imposing the three-year upper term for possession of methamphetamine for
sale; an eight-month consecutive term for resisting an executive officer; and
one consecutive year for each the two prior prison terms Humphries had
served. Humphries was awarded
140 days of presentence credits.
Among other fines and fees, the court ordered a $1,200 restitution fine
and a $1,200 parole revocation restitution fine.
A
timely notice of appeal was filed on February 16, 2012. The notice of appeal recites that it is based
on “the sentence or other matters occurring after the plea that do not affect
the validity of the plea.†(Cal. Rules
of Court, rule 8.304(b).) No certificate
of probable cause (§ 1237.5), permitting pursuit of other issues, was
requested.
Assigned
counsel has submitted a Wende
counsel has been unable to identify any issues for appellate review. Counsel also has submitted a declaration
confirming that appellant has been advised of his right to personally file a
supplemental brief raising any points which he wishes to call to the court’s
attention. No supplemental brief has
been submitted. As required, we have
independently reviewed the record. (
109–110.)
We
find no arguable issues and therefore affirm.
Background
Since
Humphries appeals only his sentence, we recite the underlying facts only as
they are relevant to the court’s sentencing choices. The facts of the offenses, and background
information relevant to the sentencing, are set forth in the probation
officer’s report and recommendation.
On
November 29, 2011,
Humphries, a known parolee, was stopped by a Lake County Sheriff’s deputy. Humphries seemed nervous and started to
remove his backpack. When the deputy
grabbed Humphries by the arm, he swung at the deputy, nearly hitting him in the
face. After a struggle, Humphries was
ultimately restrained with the assistance of two other officers and a
bystander. Inside Humphries’s backpack,
the deputy found 11 baggies containing a total of 21.5 grams of
methamphetamine. They also found
15.2 grams of marijuana, a clear glass smoking pipe with white residue in
the bowl, and a digital scale.
In
sentencing Humphries, the court, as previously noted, found that this was not
an unusual case such that would overcome the statutory presumption against
grant of probation. In selecting the
upper term on the charge of possession of methamphetamine for sale, the court
found that aggravating factors outweighed mitigating circumstances. The court cited the following aggravating
factors: 1) the manner in which the
crime was carried out indicated planning and sophistication; 2) Humphries
engaged in violent conduct indicating a serious danger to society; 3) his
prior convictions are numerous; 4) he was on parole at the time the crime
was committed; and 5) his prior performance on probation and parole was
unsatisfactory. In mitigation, the court
found that Humphries voluntarily acknowledged wrongdoing early in the
proceedings. A consecutive term was
imposed on the section 69 conviction because the crimes and their
objectives were “predominantly dependent [sic]
on one another,â€
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and they were committed “at different times and or separate places.â€
Discussion
Humphries’s
notice of appeal challenges only his sentence.
Humphries was told at the time of his plea that he faced a prison
sentence of up to five years and eight months.
Section 1170, subdivision (b) provides that (1) the
middle term is no longer the presumptive term absent aggravating or mitigating
facts found by the trial judge; and (2) a trial judge has the discretion
to impose an upper, middle, or lower term based on reasons he or she states. The section provides in pertinent part: “When a judgment of imprisonment is to be
imposed and the statute specifies three possible terms, the choice of the
appropriate term shall rest within the sound discretion of the court.
. . . The court shall select the term which, in the court’s
discretion, best serves the interests of justice. The court shall set forth on the record the
reasons for imposing the term selected . . . .†(§ 1170, subd. (b); Cal. Rules of
Court, rule 4.420.)
The
statutory sentencing scheme affords the trial court “broad discretion,†and a
sentencing decision is reviewed for abuse of discretion. (People
v. Sandoval (2007) 41 Cal.4th 825, 847.) A sentencing choice should be based upon an
“ ‘individualized consideration of the offense, the offender, and the
public interest’ †and a trial court abuses its discretion if it relies
upon circumstances that are not relevant to the decision or that otherwise
constitute an improper basis for decision.
(Ibid.)
The
court here set forth on the record the reasons for its sentencing choices,
including reasons for its sentencing choice in imposing a consecutive term on
charge of assaulting an executive officer (§ 1170, subd. (c)). Furthermore,
except in the case of an unauthorized sentence, claims involving the trial
court’s failure to properly make or articulate its discretionary sentencing
choices are waived by failure to object at the time of sentence. (People
v. Scott (1994) 9 Cal.4th 331, 353–354.)
Humphries made no objection. The
only request made by Humphries’s counsel at sentencing was that the court
recommend Humphries for drug treatment within the Department of Corrections and
Rehabilitation pursuant to section 1203.096.
Humphries
was represented by counsel at the time of his plea and at the time of
sentencing. The record reflects that the
trial court considered the relevant factors concerning both the charged
offenses and Humphries’s background and history. Sentencing credits were properly
awarded. No abuse of the trial court’s
considerable sentencing discretion is shown.
We find no arguable issues.
Disposition
The
judgment is affirmed.
_________________________
Bruiniers,
J.
We concur:
_________________________
Jones, P. J.
_________________________
Simons, J.
All further statutory references are to the Penal Code, unless otherwise
indicated.
People v. Wende (1979) 25 Cal.3d 436.
